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Court of Protection and Deputyship

The Act is designed to protect vulnerable people who may not be capable of making all their own decisions. When someone is being assessed in respect of their capacity to make a specific decision, that person must be given the appropriate level of assistance to enable them to make decisions themselves.

The Act sets out who can make decisions in specific situations and the principles that must be followed when doing so.

The Mental Capacity Act is implemented by the Court of Protection and supported by the Code of Practice.

What is meant by ‘lack of capacity’?

A person’s capacity refers specifically to their ability to make a particular decision at the time it needs to be made. Capacity is an issue-specific matter. This means that if someone is unable to make a decision in respect of one matter, it does not necessarily follow that they are unable to make all decisions in respect of all their financial affairs.

Before a deputy can be appointed, the COP has to be satisfied that the person lacks the relevant capacity to make a specific decision for him or herself. This will need to be determined by medical evidence.

The Court of Protection (COP)

The COP is a specialist court which deals with decision making for people who do not have capacity to make decisions themselves. The COP can appoint a deputy to make decisions on behalf of someone who lacks capacity.

The Office of the Public Guardian (OPG)

The OPG is the administrative arm of the COP. It supervises court-appointed deputies, keeps registers of deputies and investigates complaints against a deputy.

What is a deputy?

A deputy is appointed by an Order of the COP. A deputy will be given on-going legal authority to make decisions on behalf of an individual who lacks capacity to make decisions for themselves. A deputy can be appointed for ‘property and finances’ or ‘health and welfare’ decisions or both. It is less common for the court to appoint a deputy to make health and welfare decisions.

A property and finances deputy will be appointed to look after a person’s financial affairs if the individual is deemed incapable of making decisions about their financial matters themselves. These duties, amongst others, will usually include: the completion of tax returns, implementing and monitoring investments, managing bills, assessing the entitlement to Social Security Benefits, regularly reviewing income and expenditure budgets and the preparation of Statutory Wills.

Appointing a deputy

A deputy can be:

A friend or relative (over the age of 18)

A professional (Solicitor)

A local authority

A trust company

It may be considered appropriate for a professional such as a Solicitor to be appointed, particularly if complex decisions need to be made or there are likely to be large sums of money to manage.

When should a deputy be appointed?

The appointment of a deputy will not be considered until a medical expert has expressed his/her opinion as follows:

The application to appoint a professional deputy should be made if it is felt that the claimant and their family would benefit from the assistance of a professional deputy.

The process to appoint a deputy may be initiated once a Defendant has admitted liability so that the deputy is in place to manage any interim payments received. Alternatively, an application can be made on receipt of an interim payment or following the final settlement of a claim.

What happens if some capacity is recovered?

Part of the process of capacity assessments requires that a person’s capacity should be reviewed to establish whether they have recovered capacity to make their own decisions or to observe their rights to liberty and to give them an opportunity to make decisions for themselves where possible.

If it is believed that someone has regained sufficient capacity to make all their own financial decisions, and supported by medical evidence, an application could be made to the Court of Protection (COP) to discharge the deputy.

How long will the appointment of the deputy last?

The COP may restrict the length of time a particular appointment will last. An example of where the court may do this is where a deputy is appointed for a child. Sometimes the court will include a limitation in the Order so that the child has to be reassessed on reaching 18. Other reasons which may place limitation upon the deputy’s appointment can include:

The death of the incapacitated person

If the deputy dies

If the deputy becomes bankrupt

If the court discharges the deputy

Costs

There are certain costs that are fixed by the COP and OPG. In brief these are:

Application fee for the appointment of a deputy

Supervision fee

Fee for appointment of deputy

Security Bond (this is variable but is decided by the COP).

The costs of a professional deputy would usually form part of the claim for damages in the litigation process.